Real Employment Law Advice

What should you consider if you are introducing staff covid testing?

As we begin to open our economy up further, many employer’s will be considering how they can operate in a Covid secure way. We all know the basic hands, face, space moto the government is so fond of.

In order to ensure the safety of employee’s some employers may be considering utilising the lateral flow tests, which can be obtained from the government, in order to help re-open the workplace or enhance the safety measures already in place.

The starting point, if you are considering implementing testing, is to understand testing (in most settings) is not mandatory, this means you will require your employee to agree to take the test.

It is arguable that testing could be mandatory for some employees, for instance, those who work in adult social care, which involves close interaction with vulnerable individuals who would be deemed to be high risk.

There are several considerations to consider if you are thinking about implementing a testing policy. I have set out below the main ones I recommend you consider.

1. Where will the testing be done?

You need to consider whether you are going to ask employees to take the tests at home, register and input the results themselves, or if you are going to set up a testing site on the premises.

In my view the first option seems more manageable and would mitigate some (not all) of the data protection considerations, as you would only be processing the result of the test.

Further, employee’s may find this approach less intrusive, as they can undertake the test themselves, in their own homes.

2. Communication

Given, the majority of employers will need their employee’s consent to undertake the testing, it is crucial that you communicate with them. Whilst some employees will understand why the request is being made, they may still have some concerns. In the circumstances, I recommend you set out the following, in writing:

  • Why you feel testing is required – this may seem obvious, but you will need to be able to justify the request. This will be easier where employees are unable to work from home.
  • How the testing will be done and how the test result is obtained – the more information you can provide to employees about the testing process and what is involved the better.
  • The process they need to follow if they test positive – at present the guidelines state that if a lateral flow test is positive, the individual and their household must isolate and request a PCR test within 2 days. If a PCR test cannot be obtained within 2 days, the isolation period runs for the full 10 days. However, if you obtain a PCR test within the 2 days and it is negative, the isolation period ends immediately.

This needs to be made clear to employees, you should also set out how the employee needs to notify you of their requirement to isolate for instance, do they follow the normal sickness absence procedure.

  • How much will an employee be paid – this is likely to be a big concern, therefore, employers need to give this some consideration. At present an employee who is required to self-isolate, can claim statutory sick pay from the first day.

If the business has a contractual company sick pay policy, I recommend you pay employees in line with this, unless you have good cause not to. However, I recommend you seek advice before deciding not to pay company sick pay.

If implementing a testing policy is critical to your business, then you may wish to consider paying employee’s full pay, at least for the period they are required to isolate between the lateral flow test and the PCR. This will reassure employees and could make them more likely to consent.

  • How the absence will be recorded – this will be a particular concern where sickness is monitored on a scale. In the circumstances, I recommend disregarding any isolation period from an employee’s sickness record.
  • What personal data is required and how will it be processed – this will be determined by where the tests are conducted. If the employee will take the test themselves and upload the result, then the only data you require is confirmation of the test result. If, however, you intend to undertake the tests on site and will input the data yourself, you will need to process more data.

The UK GDPR legislation allows employers to carry out health testing, where there is a good reason. However, medical data is classed as special category data and therefore, requires additional protection.

If you are considering handling more data than just the test result, I recommend you complete a data protection impact assessment, to ensure you are being compliant in the way you are processing data.

I recommend you inform your employees of the following:

  1. What personal data is required;
  2. What it will be used for;
  3. Who it will be shared with;
  4. How long it will be kept; and
  5. What decisions will be made based on the test result.

3. Will you require visitors to undertake testing before they enter the premises?

I recommend you consider this carefully, as if you do not ask individuals who attend the site to take a test, you could be undermining your argument to request your employees undertake testing. This could lead to complaints and disputes arising.

Of course, if yours is a business which is open to the public this is not going to be possible, and unlikely to cause conflict with individual employees. Whereas in a closed office environment it may be reasonable to ask visitors to have a test before the attend onsite.

4. What if an employee refuses to consent?

I recommend you discuss with the employee what their concerns are and try to resolve matters. If possible, try and come up with an alternative to them requiring taking a test, for example, if they can work from home.

If discussion and compromise cannot resolve the issue you may be able to take disciplinary action, but I strongly recommend you seek advice before taking any action against an employee who refuses to consent.

If you are considering implementing a testing policy, and require any assistance, please do not hesitate to contact either myself or a member of the team on 01983 897003.

We advise on a wide range of issues and would be happy to assist with the process and can produce the necessary paperwork you need for a fixed fee of £175 plus VAT.

Photo by Mika Baumeister on Unsplash

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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.

The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.


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